https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1396

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI APPEAL NUMBER E418 OF 2025 NAIROBI EAST HOSPITAL LTD…….……………....................................................APPELLANT -VERSUS RAHMA JALDESA................................................................................................... RESPONDENT *(Being an Appeal from the* *Ruling and order of the Hon. D.O Mbeja (SPM) Milimani ELRC delivered on 27th November 2025 in MCELRC/E1590/2023)* *CORAM* *Before Lady Justice Jemimah Keli* *C/A Otieno* RULING 1. The Appellant was dissatisfied with the ruling of the lower court and, among others, alleged infringement of its right to a fair hearing, which is a non-derogable right under Article 50 of the Constitution. The appellant filed an application by way of Notice of Motion dated 3rd December, 2025 seeking orders as follows: 2. spent 3. THAT pending hearing and determination of this application, there be a temporary stay of execution of the ruling and orders of the Chief Magistrate's Court at Milimani by Hon. D.O. Mbeja delivered on the 27th of November, 2025 in MCELRC/E1590/2023, together with all consequential proceedings thereunder; 4. THAT pending hearing and determination of the intended Appeal, there be a temporary stay of execution of the ruling and orders of the Chief Magistrate's Court at Milimani by Hon. D.O. Mbeja delivered on the 27th of November, 2025 in MCELRC/E1590/2023, together with all consequential proceedings thereunder. 5. THAT this Honourable court be pleased to grant stay of execution of the judgment delivered on the 24th of April, 2025 by HON. D.O. MBEJA (SPM) and the resultant decree pending hearing and determination of this Application AND THE INTENDED APPEAL; 6. THAT this Honourable court be pleased to issue an injunction restraining the Respondent whether by herself or through her agents, servants, employees, anyone claiming through or deriving authority from her from proclaiming. attaching, selling and/or in any way effecting the warrants of attachment dated the 23rd of September, 2025 (or in any other date) pending the hearing and determination of this application: 7. THAT this Honourable court be pleased to issue an injunction restraining the Respondent whether by herself or through his agents, servants, employees, anyone claiming through or deriving authority from her from proclaiming. attaching and/or removing from the Applicant's premises and selling any property pending hearing and determination of this application AND THE INTENDED APPEAL; 8. THAT the costs of this application abide the outcome of the Appeal; 9. Any other orders that this Honourable court deems just and expedient to grant. 10. Grounds of the application a) THAT this matter was heard exparte by HON. D.O. MBEJA (SPM) and the judgement was delivered on the 24th of April, 2025 irregularly without the Applicant herein being granted an opportunity to defend itself. b) THAT the Claimant through her Advocates on record and in a bid to execute the said exparte judgment instructed Auctioneers to proceed with the execution process and the Applicant herein was thus served on the 26th of September, 2025 with Warrants of Attachment of Movable Property together with the Proclamation Notice by MBUSERA AUCTIONEERS. c) THAT to avoid the execution from proceeding, the Applicant herein proceeded to file an application to, inter alia, re-open the suit and to have the matter heard on its merit and the said application was unfortunately dismissed by HON. D.O. MBEJA (SPM) despite having merit. d) THAT there is therefore need for stay of execution orders to be issued to enable the Applicant herein to canvass the application herein as well as the Appeal as any proclamation of the applicant's goods would not only affect their business, but. will also affect many patients that rely on the hospital for medical attention. e) THAT it suffices to note that the Applicant herein is a hospital and the aforesaid Auctioneer who was instructed by the Respondent's Advocates proclaimed Hospital Items such as Assorted Medical Equipment, Assorted Medicines, Freezers and Refrigerators used mainly to store medicine and blood transfusion bags, water Dispenser, Assorted Hospital Beds and Assorted Surgery Machines all of which are essential items required to treat patients. f) THAT the damage that will be caused if the proclaimed items are sold by the Auctioneer in the event that the stay of execution orders are not issued promptly will be of a huge magnitude and equally irreparable as the same will easily lead to the health deterioration and even death of some patients. g) THAT the Applicant herein has never been served with the Statement of Claim and the Summons to Enter Appearance or any other court documents in relation to the case in Milimani MCELRC/E1590/2023 and they only learnt of the existence of the aforesaid case upon receipt of warrants of attachment and sale of immovable property from M/s MBUSERA AUCTIONEERS. h) THAT the judgment and decree in Milimani MCELRC/E1590/2023 were irregularly procured by the Claimant/ Decree Holder and as such the Claimant/ Decree Holder should not be allowed to benefit from its dishonourable action. i) THAT the Applicant herein seeks to Appeal against the whole Ruling of Hon. D.O. Mbeja (Mr.), Senior Principal Magistrate at Milimani, delivered on the 27th of November, 2025 in Milimani MCELRC/E1590/2023. j) THAT unless this application is expeditiously heard and determined, the Applicant herein will suffer substantial loss due to wrongful attachment and sale of its property. k) THAT unless this application is expeditiously heard and determined, the auctioneers will definitely proceed to sell the Applicant's hospital items and the intended appeal will in return be rendered nugatory. 1) THAT it is therefore in the interest of justice that this court grants the orders sought herein expeditiously so as to prevent any irreparable damage on the part of the Applicant herein. m) THAT unless this application is heard and determined by this Honourable Court expeditiously, the Applicant's efforts of safeguarding its interests will be rendered nugatory. n) THAT it's only fair and lawful that the application be heard and determined with utmost urgency and without any delays so that the Applicant's rights are protected. o) THAT the intended appeal is arguable and raises serious triable issues of law and fact with a high likelihood of success. p) THAT the Appellant is ready and willing to comply with any reasonable conditions that the Court may impose for the grant of stay. q) THAT it is in the interests of justice that status quo be maintained pending the determination of the appeal. r) THAT this application is made in good faith and it is in the interests of justice that the same be allowed and interim orders do issue staying the judgment herein and resultant decree pending hearing and determination of this Application. Response 1. The court on the 19th January 2026 granted leave to the respondent to file a response. There was no response filed on perusal of the CTS. The application was deemed unopposed. DECISION 1. The application was canvassed by way of written submissions. Both parties filed. 2. The application was hinged on the right to fair hearing. The applicant is dissatisfied with the ruling by Hon Mbeja rejecting their application to set aside the default judgment for, inter alia, want of service of the claim. 3. Rule 73 of the Employment and Labour Relations Court Rules of 2024 provides as follows- *‘(2)Rules on execution or stay of execution of an order or decree of the Court shall be in accordance with the Civil Procedure Rules.’’* The relevant rule under the Civil Procedure Rules is Order 42 Rule 6 to wit- ‘***6. Stay in case of appeal [Order 42, rule 6]*** *(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.’’* 1. The court established that there was no unreasonable delay in filing the application. The impugned decision was dated 27th November 2025 , and the Memorandum of Appeal was filed on the 3rd December 2025. The instant application was filed on 4th December 2026, of which the court found was brought without inordinate delay. 2. On substantial loss, this being a money decree, the loss is disclosed as the respondent did not demonstrate capacity to repay the money in the event of a successful appeal by filing an affidavit of means. Indeed the application was not opposed. 3. On the issue of security, which is a mandatory condition under section 42(6) of the Civil Procedure Rules, the applicant submits that the appeal is on the ruling. The court noted the issue of infringement of the right to a fair hearing before the lower court was raised. Before the court is an appeal on that right. There was no response in opposition. I will let the issue of security pass as the appeal is on the ruling. 4. The court then finds that the application is merited. The court is guided by decision in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal gave guidance on how a Court should exercise discretion in an application for a stay of execution, that: - *‘If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.* *It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in*Wilson v Church *(No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:* *“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”* The application is merited, and is allowed in order to prevent the appeal, if successful, from being nugatory. 1. I allow the application as follows- 1. THAT pending hearing and determination of the intended Appeal, the court issues a a temporary stay of execution of the ruling and orders of the Chief Magistrate's Court at Milimani by Hon. D.O. Mbeja delivered on the 27th of November, 2025 in MCELRC/E1590/2023, together with all consequential proceedings thereunder. 2. THAT this Honourable court is pleased to grant stay of execution of the judgment delivered on the 24th of April, 2025 by HON. D.O. MBEJA (SPM) and the resultant decree pending hearing and determination of this Application and the intended appeal; 2. THAT this Honourable court is pleased to issue an injunction restraining the Respondent whether by herself or through his agents, servants, employees, anyone claiming through or deriving authority from her from proclaiming. attaching and/or removing from the Applicant's premises and selling any property pending hearing and determination of the intended appeal; 3. THAT the costs of this application abide the outcome of the Appeal; 4. The appeal be fast-tracked. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Lusweti Respondent: absent